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Argument preview: Who is a decedent’s “child”?

Posted Wed, March 14th, 2012 11:20 am by Kristine Knaplund

The following contribution is by Kristine S. Knaplund, Professor of Law at Pepperdine University School of Law in Malibu, California. Professor Knaplund has written extensively on the legal and ethical issues that arise when children are conceived and born years after a genetic parent has died, including articles in the Arizona Law Review, Kansas Law Review, the Duke Journal of Gender Law and Policy, the Michigan Journal of Law Review, and the ABA Real Property, Trust and Estate Law Journal. She is an Academic Fellow of the American College of Trust and Estate Counsel, and serves as Vice Chair of the ABA Elder Law, Disability Planning and Bioethics Group.

On March 19, the Court will hear oral argument in Astrue v. Capato, to decide the appropriate legal standard to determine whether a “postmortem conception” child –that is, a child conceived and implanted after a parent’s death — is the late parent’s child for the purpose of awarding Social Security survivor’s benefits. The key question in the case is whether an applicant for benefits who is the biological or undisputed child of a deceased wage earner must also establish that he is entitled to inherit in intestacy from the decedent under state law. The Third Circuit agreed with Karen Capato, the mother of two children who were applying for benefits, that the statute only requires an applicant to be the decedent’s “child.”

Background

Karen and Robert Capato were married in August 1999, shortly before Robert Capato was diagnosed with esophageal cancer. Robert Capato cryopreserved his sperm before he began his chemotherapy treatments; he died in Florida in March 2002. His will, executed three months before his death, named as beneficiaries his three surviving children; it did not contain any provision for a future child conceived after his death. Karen Capato used her husband’s cryopreserved sperm to conceive a child in January 2003, and in September 2003 – eighteen months after Robert Capato’s death – she gave birth to twins.

Shortly after the twins were born, Karen Capato applied for child’s insurance benefits for them, but that application was denied – first by the Social Security Administration (SSA) and then in a hearing before an administrative law judge. Karen Capato then filed suit in federal district court, which affirmed the denial of benefits. It found that Robert Capato was domiciled in Florida when he died and that therefore Florida intestacy law applied. Because Florida law allows a postmortem child to inherit only if provided for in the decedent’s will, the court held that the twins were not eligible for child’s insurance benefits.

On appeal,the Third Circuit held that the undisputed biological children of a deceased wage earner and his widow are “children” within the meaning of the Social Security Act. Any inquiry as to whether the Capato twins would inherit under Florida intestacy law was therefore irrelevant to the determination that Robert Capato is their father. Although the Court did not reach the question of Robert Capato’s domicile at death or the law of intestacy in that state, it added that, “were we likely to decide the issue of domicile, we would likely conclude that it was Florida,” as the district court had found. The court then remanded the case for the district court to determine whether the twins could be deemed dependent on Robert Capato at his death.

In its opinion, the Third Circuit outlined the criteria that must be met for an applicant to receive child’s insurance benefits. As relevant here, the applicant must be a “child” as defined in § 416(e) of the Social Security Act, which provides that “[t]he term ‘child’ means (1) the child or legally adopted child of an individual.” The child must also be dependent on the wage earner at the time of the wage earner’s death. With modern technology now making it possible for children to be conceived and born years after a wage earner’s death, litigation has arisen regarding these two requirements. Although this is a federal benefit, the Social Security Administration (SSA) and the courts generally look to state law to determine the answers to these two questions.

Congress has declared in the Social Security Act that “[e]very child (as defined in § 416(e) of this title) . . . of an individual who dies a fully or currently insured individual . . . shall be entitled to a child’s insurance benefit.” The issue is whether Congress intended the definition of “child” to be contained exclusively in § 416(e) or, as SSA instead maintains, other provisions of the Act must also be used to decide who is the decedent’s child. In 2004, the Ninth Circuit adopted the first alternative, holding that “child” means a biological child or one whose parentage has not been disputed. The SSA has acquiesced to this interpretation of “child” for the Ninth Circuit only. In this case, the Third Circuit followed the Ninth Circuit in holding that, because the applicant was the undisputed biological child of the insured, the first requirement was satisfied.

In contrast, SSA has maintained that the only way that a postmortem conception child can be eligible for benefits is to satisfy § 416(h), entitled “Determination of family status.” It relies on § 416(h)(2)(A), which provides:

In determining whether an applicant is the child . . . of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual . . . was domiciled at the time of his death.

The Third Circuit noted that de novo review applied in this case, in which the district court had upheld the SSA’s denial of benefits. Review of the ALJ’s decision requires the court to ascertain if the decision was supported by substantial evidence. The court stated that the purpose of the child’s insurance benefits is to “replace the support that the child would have received from his father had the father not died,” and that, in general, the Act should be accorded “a liberal application in consonance with its remedial and humanitarian aims.” To determine whether the Capato twins are Robert Capato’s children, the court first examined § 416(e), which defines “child” as “the child or legally adopted child of an individual.” Although the word “child” is also defined in § 416(h) of the Act, the court of appeals found no reason to turn to that subsection when, as here, “there is no family status to determine.” The court reasoned that “[t]o accept the argument of the Commissioner, one would have to ignore the plain language of § 416(e) and find that the biological child of a married couple is not a ‘child’ within the meaning of § 402(d) unless that child can inherit under the intestacy laws of the domicile of the decedent.” Because Congress’s unambiguously expressed intent is found in the statutory language, Chevron deference does not apply in assessing SSA’s interpretation of § 416(e) to require compliance with § 416(h).

Having concluded that the twins qualified as the deceased wage earner’s “child,” the court remanded the case for the lower court to determine whether the applicants satisfied the requirement that they be dependent on Robert Capato at his death. SSA then filed a petition for certiorari, which the Court granted on November 14, 2011.

For the past seventy years, SSA’s position has been that Congress intended all applicants for child survivor benefits to satisfy § 416(h). The only way that a postmortem conception child can qualify for benefits is to demonstrate that he is entitled to inherit in intestacy under state law. The other provisions to qualify as a child under § 416(h)(which require some action while the parent is alive to acknowledge or support the child) do not apply to a child conceived and born after the wage earner’s death.

SSA makes four arguments to support its position. The first is based on the text of the Act. Section 416(h) provides that, in determining whether the applicant is the child of an insured individual, the Commissioner shall apply the intestacy law of the individual’s domicile at death, a direction that is mandatory. Otherwise, SSA contends, much of § 416(h) is rendered superfluous.

SSA’s second argument relies on the legislative history of the Act, emphasizing that its interpretation of the 1939 Act was well established when Congress amended the act in 1965. When it did so, SSA reasons, Congress did not demonstrate any intent to disturb the original interpretation.

Third, SSA continues, its position is consistent with principles of federalism and promotes the statutory purpose. Parentage is traditionally the province of state law. The purpose of these benefits is to replace income on which the surviving parent or guardian relied for the support of the child, rather than to subsidize the continuance of reproductive plans after the wage earner’s death.

Fourth and finally, SSA argues that its interpretation is entitled to Chevron deference: because its interpretation is reasonable, it should be upheld.

Respondents counter that the requirement that the applicant be the wage earner’s “child” means that the applicant is the biological or undisputed child. They rely first on their interpretation of the plain meaning of the Act. They argue that § 402(d)(1) makes eligible “every child (as defined in § 416(e),” which then defines child to include “the child or legally adopted child” of the insured – including the biological child of a married wage earner. In this case, there is no reason to turn to § 416(h). If SSA’s position is adopted, other provisions of § 416(h) would be rendered superfluous.

Like the SSA, respondents also rely on the legislative history. In 1965 Congress amended the Act; the legislative history of that amendment describes § 416(h) as applying to children born out of wedlock. More broadly, the purpose and history of the Act support the conclusion that § 416(h) does not apply to the biological children of married parents.

Finally, respondents contend that because the Act is clear, SSA’s interpretation is not entitled to Chevron deference.

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